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Chieftaincy - Chief -
Recognition - Local Government
Bulletin notification of
recognition of chief by
government - Recognition clothes
chief with competence to perform
statutory functions -
Publication of recognition not
final on status of chief -
Status may be challenged by due
process of law - Chieftaincy
(Amendment) Law (1985) PNDCL 107
s 48.
Courts - High Court -
Jurisdiction - Application for
certiorari and prohibition in
respect of decision of
traditional council - Allegation
that decision made without
jurisdiction and in breach of
audi alteram partem rule -
Whether matter affecting
chieftaincy.
The appellants, being aggrieved
by the enstoolment of a new
chief of Kwae, instituted
proceedings before the Akyem
Abuakwa Traditional Council for
a declaration that the
installation was null and void.
The judicial committee of the
traditional council decided in
favour of the appellants. Later,
the appellants received a letter
from the traditional council,
attached to which was another
judgment supposed to have been
delivered subsequently by a
judicial committee of the
council, differently
constituted, in favour of the
respondents. The appellants
instituted proceedings in the
Koforidua High Court for
certiorari to quash the
second decision and prohibition
to prohibit the judicial
committee of the council from
hearing and determining that
matter again. The court upheld a
preliminary objection by the
respondents that a publication
having been made in the Local
Government Bulletin
recognising the chief, the
matter affected chieftaincy and
the court lacked jurisdiction to
entertain the application before
it. The appellants appealed to
the Court of Appeal.
Held
(1) All that s 48(2) of Act 370
as amended by PNDCL 107 did was
to clothe a chief with the
competence to perform statutory
functions when recognised by the
Secretary for Chieftaincy
Matters. Such recognition was
accorded a chief by notice
published in the Local
Government Bulletin. Without
it a chief could perform some
other functions but not
statutory functions. The notice
did not however put a final seal
on the status of the chief,
which could be challenged by due
process of law. Republic v
Asokore Traditional Council, ex
parte Tiwaa [1976] 2 GLR
231, Republic v National
House of Chiefs, ex parte
Kusi-Apea [1984-86] 2 GLR 90
cited.
(2) The conferment of
jurisdiction in chieftaincy
matters on traditional councils
did not take away the
supervisory jurisdiction of the
High Court over these bodies
when they, acting through their
judicial committees in the
exercise of their judicial
powers, breached the rules of
natural justice or acted in
excess of their jurisdiction or
lack of it. The appellants’
claim before the court was not a
cause or matter affecting
chieftaincy. In determining it
the court did not have to
concern itself with the validity
or otherwise of the
installation. It was only
required to find out whether
there had been, as alleged, any
violation of the rules of
natural justice particularly,
the audi alteram partem
rule or whether the tribunal
lacked jurisdiction at all. The
court ought to have dismissed
the contention of the
respondents and proceeded to
determine the matter on its
merits. In the result the appeal
would be allowed, the ruling of
the court would be set aside and
the case remitted to the court
for determination on its merits.
Republic v High Court Accra,
ex parte Fense, Court of
Appeal, dated 23 June 1986,
Republic v National House of
Chiefs, ex parte Faibil III
[1984-86] 2 GLR 731
distinguished, Republic v
Terkpebiawe Divisional Council,
ex parte Nene Korle II
[1972] 1 GLR 199 applied.
Cases referred to:
Republic v Asokore Traditional
Council, ex parte Tiwaa
[1976] 2 GLR 231, CA.
Republic v High Court Accra, ex
parte Fense,
CA dated 23 June 1986.
Republic v National House of
Chiefs, ex parte FaibiI III
[1984-86] 2 GLR 731, CA.
Republic v National House of
Chiefs, ex parte Kusi-Apea
[1984-86] 2 GLR 90 CA.
Republic v Terkpebiawe
Divisional Council, ex parte
Nene Korle II
[1972] 1 GLR 199.
APPEAL against the ruling of the
High Court.
Ofori-Asante
for the appellants.
LUTTERODT JA.
This is an appeal against the
ruling of the High Court,
Koforidua delivered on 4
December 1989. On 9 January 1983
the chief of Kwae died and the
following year, to be precise on
5 September 1984, Opanyin
Brobbey Aboagye, the 3rd
interested-party-respondent was
installed as his successor.
The appellants herein, being
highly aggrieved by his
enstoolment instituted
proceedings before the Akyem
Abuakwa Traditional Council for
a declaration that the
installation was null and void.
Accordingly, the council
appointed a three-member panel,
all of whom were chiefs, to hear
and determine the complaint.
That judicial committee, as
constituted, heard evidence from
both sides and on 2 October 1984
delivered a judgment which went
in the appellants’ favour.
However, some months later, i.e.
on 3 June 1985, the appellants
received a letter from the Akyem
Abuakwa Traditional Council.
Attached to it was a judgment,
which was supposed to have been
read on 31 May 1985 by a
judicial committee of the
Council differently constituted,
and in respect of the complaint
they had lodged and which
complaint had been adjudicated
upon by the first committee.
This time, the judgment went in
favour of the appellants’
opponents, the
interested-party-respondents.
Again, the dissatisfied
appellants promptly caused
proceedings to be instituted
before the Koforidua High Court.
The reliefs they sought in those
proceedings were the twin
prerogative remedies of
certiorari and prohibition.
The certiorari was to be
used to quash the judgment and
orders of the second judicial
committee, whereas the
prohibition was aimed at
forbidding any judicial
committee of the council from
hearing and determining again
that matter which had already
been adjudicated upon and which
had terminated in the
appellants’ favour.
As was required by the rules,
the motion for these prerogative
orders were accompanied not only
by a statutory statement but an
affidavit, verifying the grounds
on which the reliefs were being
sought. From the statement as
well as the accompanying
affidavit we learn what the
complaint of the appellants was.
It is this: firstly, that the
respondents violated the rules
of natural justice in that they
never heard the parties nor
their witnesses before
delivering their judgment. Put
in other words, that they
condemned them without first
giving them a hearing. Secondly,
they lament that in so far as a
properly constituted judicial
committee had earlier on
adjudicated upon the matter the
respondent could not be seised
with jurisdiction to determine
that same matter since in any
case there was no matter pending
before the council and which was
awaiting determination.
For our purposes, I do not think
it is relevant to outline the
various steps taken by the
respondents when they were
served with the motion.
One of them however, was the
well-known and usual step of
filing an affidavit in
opposition. In it, they set
forth the reasons why the
appellants were not deserving of
these judicial reliefs.
Hearing of the substantive
motion commenced on the 24
February 1986 before His
Lordship Mr Justice J A Wutoh
who, although this was a trial
by affidavits, decided to take
evidence. At a further hearing
some three years later before
His Lordship Mr Justice Abakah,
again one of the steps the
appellants took was to apply for
an order permitting evidence to
be taken. They did so by a
motion accompanied by an
affidavit. The respondents
promptly filed an affidavit in
opposition in which they raised
two important matters. These
are:
“1. That the trial court was, by
the application for
certiorari engaging in an
exercise wholly outside the
jurisdiction of the court in
that the exercise amounted to
the determination of a
chieftaincy cause or matter
before the judicial committee.
2. Secondly, that given the fact
that the chief (whose
enstoolment was being
challenged) has in any case been
given recognition by the
government in the Local
Government Bulletin No 31, the
court had no jurisdiction to
entertain any action which seeks
to challenge the validity of his
status.”
It was upon this basis that when
the application for
certiorari came up for
further hearing on the 15th of
November 1989, the respondents’
counsel formally moved to have
the motion dismissed on the main
ground that with the publication
of the Local Government Bulletin
the court lacked jurisdiction to
entertain the application before
it.
The appellants were most unhappy
with the ruling delivered by the
court on 4 December 1984 and
have therefore appealed to this
honourable court, on two
grounds, ground 2 being the main
one.
In reality the appeal was fought
on only one ground, ground 2,
which I reproduce hereunder:
“(2) That the learned trial
judge erred in law in holding
that with the publication of the
gazette publishing the
enstoolment of the interested
party the court’s jurisdiction
was ousted.”
In arguing this ground,
appellants’ counsel placed
reliance upon the case of
Republic v Asokore Traditional
Council, ex parte Tiwaa
[1976] 2 GLR 231, 245 and urged
that:
“1. The mere fact that a person
has been gazetted and so given
government recognition does not
put a final seal of validity on
the correctness of his
nomination, election, or
installation to the extent that:
(a) the validity of his
enstoolment can never be
questioned by the due process of
law and,
(b) consequently, the High Court
would have no power in the
exercise of its supervisory
jurisdiction to correct errors
of law or breaches of natural
justice that may have been
perpetrated by the adjudicating
authority before whom the
complaint lay.
2. Secondly, the grievance of
the appellants is that the
learned trial judge misconceived
the issue before him. Counsel’s
argument is that it was the
procedure before the judicial
committee which was being called
into question. Differently put,
that they were not by the
proceedings inviting the court
to determine a cause or matter
affecting chieftaincy, but
merely to correct errors in the
procedure adopted.”
A fairly large part of the trial
judge’s ruling dealt with the
difference between the PNDCL 107
and its predecessor s 48 of Act
370, an exercise which in my
humble view was not relevant to
a determination of the issues
before the court. But the more
serious issue is that I think
the learned judge, in construing
s 48(2) of Act 370, as amended
by PNDCL 107, fell into error
when he concluded that “the law
that has so far prevailed that a
gazette notice does not put
final validity to the matter
notwithstanding, a person so
published shall be deemed to be
a chief as indicated”. In other
words as other parts of his
ruling would seem to indicate,
the publication of the gazette
notice puts finality to the
matter. Little wonder then that
he further concluded that the
only option open to any one
aggrieved by the publication is
to initiate destoolment
proceedings or other proceedings
to question his nomination,
election or enstoolment. I think
this unfortunate misconception
led him into a much more serious
error namely that he further
held that:
“The application before me
should be considered with the
two eyes as well as all the
windows of perception and
circumspection of the court
flung wide open ...”
and further that he did “not see
this application in the
short-sighted lens of an
application just to correct
errors in the manner in which
the inferior tribunal conducted
its proceedings”.
Why do I say the judge’s
interpretation of the s 48 of
Act 370 is wrong and that the
publication of the gazette
notice does not put finality to
the matter? The new law, which
like its predecessors deals with
the definition of a chief, reads
as follows:
“48(2) Notwithstanding any law
to the contrary, no person shall
be deemed to be a chief for the
purposes of the exercise by him
of any function under this Act
or any other enactment unless he
has been recognised as such for
the exercise of that function by
the Secretary responsible for
chieftaincy matters by notice
published in the Local
Government Bulletin.”
I think all that subsection 2 in
particular does is to clothe a
chief with legal validity to
perform statutory functions only
when he has been given due
recognition by the Secretary for
chieftaincy matters. Recognition
is accorded such chief by notice
published in the Local
Government Bulletin. Without
such recognition, there is no
chief who can perform any
statutory function. In other
words, without it he could
perform some functions but
certainly not statutory
functions.
When compared to the previous
law we would find no marked
difference. Indeed I do not even
see any difference between
sub-section (2) and the proviso
in the previous s 48 which also
provided that a chief who has
not been gazetted cannot perform
statutory functions. It does
seem to me then that in this
regard, the law has not changed.
Therefore, the gazette notice
does not put a final seal on the
validity of the person’s status
as a chief and therefore the
status of the person can validly
be challenged by the due process
of law. In my view therefore the
principle of law established in
Republic v Asokore
Traditional Council, ex parte
Tiwaa [1976] 2 GLR 231 at
234 is still good law. The
principle of law is that a
gazette notice which announces
the destoolment or enstoolment
of a chief does not put a final
seal on the legal validity of
the status of the chief in
question. The Tiwaa case
apart, the case of Republic v
National House of Chiefs, ex
parte Kusi-Apea [1984-86] 2
GLR 90, would support the views
I have expressed, that
government recognition by
gazette notice was only
essential if the chief had to
perform statutory functions.
True, that dealt with the
previous s 48, but as I have
shown there is no difference
between the two pieces of
legislation. I would think the
new elements introduced into the
legal definition of a chief by
the passage of the law 107,
could only be found in
subsection (1).
But perhaps the more serious
complaint is that the learned
trial judge misunderstood the
nature of the application before
him. The mere fact that he
confessed at one stage that the
application was in truth an
application for an order of
certiorari to quash the
decision of an inferior tribunal
on the grounds of jurisdiction
and breach of a rule of natural
justice does not in anyway
ameliorate the situation, for in
the same breath he flatly
refused to determine the issues
he had himself identified, on
the grounds that that would have
an ultimate effect of
challenging the “installation”
of the chief.
It is true that there have been
occasions when litigants have
attempted to circumvent the law
giving exclusive jurisdiction in
chieftaincy matters to the
Traditional Council as happened
in Republic v High Court
Accra, ex parte Fense, Court
of Appeal dated 23 June 1986 as
well as Republic v National
House of Chiefs, ex parte Faibil
III [1984-86] 2 GLR 731.
They have sought to do this by
instituting proceedings which
prima facie seem innocent
but in reality are aimed at
circumventing the law which
gives exclusive jurisdiction of
chieftaincy matters to the
judicial committee of the
traditional councils. Happily,
the courts have been quick to
see through such disguises.
But such is not the position in
the proceedings before this
court. The appellants were not
seeking to use a back door
method or shortcut method to
destool the 3rd respondent. In
actual fact a cursory reading of
their affidavit would show that
the primary aim of their
application is not to obtain an
order which would amount to a
declaration that he had been
destooled. They were also not
seeking to challenge either his
nomination, election or
installation. In short, theirs
was never a cause or matter
affecting chieftaincy. The law
is very well settled on what are
chieftaincy matters, a
definition of which for example
has been provided by Act 370,
the relevant section being s
66(c). Again the authorities are
legion - the causes or matters
affecting chieftaincy have been
exclusively reserved for the
traditional councils.
But I am firmly of the view that
the conferment of this
jurisdiction on these councils
did not take away the
supervisory jurisdiction of the
High Court over these bodies
when they, (acting through their
judicial committee) in the
exercise of their judicial
powers, either breach any of the
rules of natural justice or lack
or act in excess of their
jurisdiction or even when their
records bear or carry errors of
law.
The view I have expressed is no
different from that which was
expressed by Abban J as he then
was in the case cited by the
appellants’ counsel, namely,
Republic v Terkpebiawe
Divisional Council [1972] 1
GLR 199 at 208-209.
In determining the substantive
application the court would not
have been caught up in
determining any cause or matter
affecting chieftaincy. Indeed it
would not have had to concern
itself with the validity or
otherwise of the installation.
The simple exercise it would
have engaged itself in was to
find out whether there had been,
as alleged, any violation of the
rules of natural justice
particularly the audi alteram
partem rule and whether the
tribunal lacked jurisdiction at
all. It was thus unfortunate
that the learned judge decided
to “fling wide open all the
windows of perception and
circumspection”. In the case
that was before him, being
myopic would clearly have been a
virtue.
We would discover that the other
reason why the learned judge
refused to grant the appellants
the judicial relief they were
seeking was because he felt the
complaint related to a “mere
procedural defect or error” in
the proceedings they had
instituted before the council in
challenge of the 3rd
respondent’s installation.
But here again I think the
learned judge misunderstood the
application.
Their complaint is not that a
procedure adopted was irregular.
Nay, they allege that a very
fundamental rule of natural
justice has been violated in
that they were not given a
hearing before being condemned
and the matter having already
been heard and determined by a
tribunal of competent
jurisdiction, the 1st
respondent, another tribunal of
co-ordinate jurisdiction, lacked
jurisdiction to determine that
same matter. I would not
describe these grievances as
mere procedural irregularities.
On the contrary, they are
substantial matters touching at
the root of this second
adjudication. Neither, do I
think that by exercising its
supervisory jurisdiction and
making those orders sought, (if
the appellants had succeeded in
proving they are entitled to
them) the court would be
stultifying itself and or making
orders which are otiose and
inconsequential. On the contrary
I think the charges levelled
against the respondent-tribunal
are very serious and
fundamental. The appellants
lament that a plain and very
simple and basic principle of
natural justice has been
violated. They also maintain
that in any case the 1st
respondent had no jurisdiction
to determine the matter. I think
the court has a duty to
investigate these complaints. In
my humble view the “preliminary
objection” ought rather to have
been dismissed for the
application to be determined on
its merits. In the result I
would allow the appeal, set
aside the ruling of the High
Court dated 4 December 1989 and
remit the matter to the High
Court for the application to be
heard on its merits.
AMUAH JA.
I agree.
KPEGAH JA.
I also agree.
Appeal allowed.
S Kwami Tetteh, Legal
Practitioner. |
